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AN WHEN-ACTUALLY-EMPLOYED EMPLOYEE WHO IS SERVING UNDER AN INTERMITTENT APPOINTMENT WITH A REGULAR PRE-SCHEDULED WORKWEEK OF 40 HOURS WHEN CALLED FOR JURY DUTY MAY HAVE HER CONDITIONS OF EMPLOYMENT CONSIDERED TANTAMOUNT TO THOSE OF TEMPORARY APPOINTMENTS FOR COURT LEAVE ENTITLEMENT. SCHULLERY: THIS IS IN REFERENCE TO YOUR LETTER DATED MAY 11. THE FACTS WHICH CONSTITUTE THE CLAIM FOR COURT LEAVE ARE STATED IN YOUR LETTER AS FOLLOWS: "MISS MILDRED ALLEN IS A MATHEMATICS AID. 'THIS APPOINTMENT IS ACCEPTED WITH THE FULL UNDERSTANDING THAT THE WORK IS OF AN INTERMITTENT NATURE AND YOU ARE SUBJECT TO LAY-OFF AT ANY TIME WITHOUT PREVIOUS NOTICE ON LEAVE WITHOUT PAY.'. IS ON A WHEN ACTUALLY EMPLOYED (WAE) BASIS.

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B-166056, AUG. 12, 1970

INTERMITTENT EMPLOYEES -- JURY DUTY -- COURT LEAVE DECISION TO CERTIFYING OFFICER, ADVISING THAT AN FAA EMPLOYEE UNDER A WHEN-ACTUALLY-EMPLOYED APPOINTMENT, WHO HAS REGULAR PRESCHEDULED TOUR OF DUTY MAY BE GRANTED COURT LEAVE FOR JURY SERVICE UNDER 5 U.S.C 6322. AN WHEN-ACTUALLY-EMPLOYED EMPLOYEE WHO IS SERVING UNDER AN INTERMITTENT APPOINTMENT WITH A REGULAR PRE-SCHEDULED WORKWEEK OF 40 HOURS WHEN CALLED FOR JURY DUTY MAY HAVE HER CONDITIONS OF EMPLOYMENT CONSIDERED TANTAMOUNT TO THOSE OF TEMPORARY APPOINTMENTS FOR COURT LEAVE ENTITLEMENT. THEREFORE WHEN THE EMPLOYEE SERVES ON JURY DUTY SHE MAY BE GRANTED COURT LEAVE.

TO MR. R. J. SCHULLERY:

THIS IS IN REFERENCE TO YOUR LETTER DATED MAY 11, 1970, REQUESTING AN ADVANCE DECISION AS TO WHETHER AN EMPLOYEE SERVING UNDER A CAREER CONDITIONAL APPOINTMENT (INTERMITTENT) WHO HAS A REGULAR PRESCHEDULED TOUR OF DUTY WOULD BE ENTITLED TO COURT LEAVE AS AUTHORIZED BY 5 U.S.C. 6322.

THE FACTS WHICH CONSTITUTE THE CLAIM FOR COURT LEAVE ARE STATED IN YOUR LETTER AS FOLLOWS:

"MISS MILDRED ALLEN IS A MATHEMATICS AID, GS-4, EMPLOYED IN OUR AVIATION EXPERIMENTAL CENTER IN ATLANTIC CITY, NEW JERSEY. THE SF-50, NOTIFICATION OF PERSONNEL ACTION, EFFECTING HER CAREER-CONDITIONAL APPOINTMENT (INTERMITTENT) HAS THE FOLLOWING STATEMENT IN THE REMARKS BLOCK, 'THIS APPOINTMENT IS ACCEPTED WITH THE FULL UNDERSTANDING THAT THE WORK IS OF AN INTERMITTENT NATURE AND YOU ARE SUBJECT TO LAY-OFF AT ANY TIME WITHOUT PREVIOUS NOTICE ON LEAVE WITHOUT PAY.' THE WORK, THEREFORE, IS ON A WHEN ACTUALLY EMPLOYED (WAE) BASIS. HOWEVER, IN ORDER TO ASSURE AVAILABILITY OF THE CONSIDERABLE SKILLS DEEMED ESSENTIAL TO MEET THE REQUIREMENTS OF VARIOUS SIMULATION PROGRAMS, A REGULAR PRE-SCHEDULED TOUR OF DUTY (NORMALLY A 40-HOUR WORKWEEK) IS ESTABLISHED FOR SUCH EMPLOYEES. A PRE- SCHEDULED TOUR OF DUTY ENTITLES THE EMPLOYEES TO OTHER BENEFITS AFFORDED FULL-TIME EMPLOYEES, I.E., LEAVE, INSURANCE, AND HEALTH BENEFITS, WHICH TEND TO OFFSET THE DISADVANTAGE OF LAYOFFS ON SHORT NOTICE. DEPENDING ON THE NEEDS OF THE RESEARCH AND DEVELOPMENT PROGRAM, A WAE EMPLOYEE MAY EXPERIENCE LONG PERIODS OF EMPLOYMENT WITH VERY INFREQUENT LAYOFFS.

"MISS ALLEN, DURING THE PERIOD BEGINNING 1 APRIL 1970 AND ENDING 30 JUNE 1970 HAS AN ESTABLISHED TOUR OF DUTY OF 8:00 A.M. TO 4:30 P.M., MONDAY THROUGH FRIDAY. THE CLAIMANT SERVED AS JUROR APRIL 6-9 AND APRIL 13-16, 1970, ALL SCHEDULED WORKDAYS, FOR WHICH SHE WAS CHARGED ANNUAL LEAVE.

"WAE EMPLOYEES HAVE NOT BEEN GRANTED COURT LEAVE, IN ACCORDANCE WITH THE VIEW SET FORTH IN 38 COMP. GEN. 307 THAT SUCH EMPLOYEES ARE EXCLUDED FROM THE PHRASE 'EMPLOYEE OF THE UNITED STATES' AS EXPRESSED IN THE JURY SERVICE STATUTE. HOWEVER, THIS DECISION WAS MODIFIED BY DECISION B- 166056, DATED 21 MARCH 1969, TO THE EXTENT THAT TEMPORARY EMPLOYEES MAY NOW BE GRANTED COURT LEAVE FOR JURY SERVICE UNDER 5 U.S.C. 6322, THE RATIONALE BEING THAT THE STATUTE, BY ITS TERMS, APPLIES TO 'ANY EMPLOYEE OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA.' SINCE THIS DECISION NOW INCLUDES TEMPORARY EMPLOYEES WITHIN THE STATUTE, YOUR DECISION IS REQUESTED AS TO WHETHER A 'WHEN ACTUALLY EMPLOYED' EMPLOYEE WITH A PRE- SCHEDULED TOUR OF DUTY IS ALSO ENTITLED TO COURT LEAVE FOR JURY DUTY. MAY MISS ALLEN BE GRANTED COURT LEAVE FOR JURY DUTY ON APRIL 6-9 AND APRIL 13- 16, 1970?"

THE DECISION TO WHICH YOU REFER, B-166056, MARCH 21, 1969 (48 COMP. GEN. 630), HELD THAT TEMPORARY EMPLOYEES OF THE GOVERNMENT ARE ENTITLED TO COURT LEAVE FOR THE PERFORMANCE OF JURY DUTY UNDER 5 U.S.C. 6322. PRIOR THERETO WE HAD HELD THAT TEMPORARY, SUBSTITUTE, AND WHEN-ACTUALLY EMPLOYED PERSONNEL WERE NOT ENTITLED TO LEAVE WITH PAY FOR THE PURPOSE OF PERFORMING JURY DUTY.

THE MATTER OF COURT LEAVE WAS FURTHER CONSIDERED WITH RESPECT TO SUBSTITUTE POSTAL EMPLOYEES IN OUR DECISION OF OCTOBER 31, 1969, B 166056, 49 COMP. GEN. . WE HELD THAT SUBSTITUTE POSTAL EMPLOYEES WERE NOT ENTITLED TO COURT LEAVE, POINTING OUT THAT SUCH EMPLOYEES HAVE NO ESTABLISHED WORK SCHEDULES, THE NUMBER OF HOURS OF EMPLOYMENT AS WELL AS THE TIME OF DAY DURING WHICH WORK IS PERFORMED MAY VARY CONSIDERABLY, AND, THUS, THAT THE CONDITIONS OF SUBSTITUTE POSTAL EMPLOYMENT DIFFER CONSIDERABLY FROM THOSE OF TEMPORARY EMPLOYMENT.

THE ABOVE CONDITIONS DO NOT EXIST WITH RESPECT TO MISS ALLEN. HER EMPLOYMENT COVERED A PROTRACTED PERIOD UNDER A CONTINUING ESTABLISHED WORK SCHEDULE. ALTHOUGH TECHNICALLY CALLING, PERHAPS, FOR DESIGNATION AS "WHEN -ACTUALLY-EMPLOYED," THE CONDITIONS OF SUCH EMPLOYMENT MAY BE VIEWED FOR COURT LEAVE PURPOSES AS TANTAMOUNT TO THOSE OF TEMPORARY EMPLOYMENT. VIEW THEREOF, AND SINCE MISS ALLEN WAS REQUIRED TO PERFORM JURY DUTY DURING PRESCHEDULED WORKDAYS, SHE MAY BE GRANTED COURT LEAVE FOR JURY DUTY ON APRIL 6-9 AND APRIL 13-16, 1970.

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